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Court hearing argues cell-phone privacy rights

Feb 13, 2010 (The Philadelphia Inquirer - McClatchy-Tribune Information Services via COMTEX) --
If you're a cellular-phone user, can you expect your records -- when and where calls are made and received -- to be private? If police want access to your data because they believe a crime has been committed, how much evidence should they have to produce? Should a search warrant be required?
Those questions were argued yesterday in the U.S. Court of Appeals for the the Third Circuit in Philadelphia in a closely watched drug-trafficking case with broad implications for the emerging law of digital privacy.

The hearing centered on a 2008 ruling by a Pittsburgh magistrate judge who denied a request by federal law-enforcement agents for the cell-phone records of a person under investigation -- information showing the location of towers used to connect his calls and the times.

The agents contended that they were entitled to the records without a search warrant, that the federal statute required only a showing of "reasonable suspicion" of a crime. The judge ruled a warrant was needed. The U.S. Justice Department appealed.

In its appellate brief, the Justice Department said getting the cell data was imperative "because the subject and his confederates use a variety of vehicles and properties to conduct their illegal activities," and "physical surveillance has proven difficult."
Arguing the department's case yesterday, lawyer Mark Eckenwiler emphasized that the government was not seeking the content of the calls.

Nonetheless, Judge Dolores Sloviter saw a problem. She said that cell-site location data, obtained without a court's review, could be used by an unscrupulous government to track dissidents.

"As I work on this, I listen to the news," she said, "and there are governments . . . like Iran, that might want to know whether its people have been at a protest. . . . Don't we have to be concerned about that?"
Sloviter said she was not suggesting that such abuses of power were happening in the United States, only that the court, in interpreting the law, must be mindful of the opportunities for abuse.

Supporters of digital privacy lined up with Kevin Bankston, senior staff attorney for the Electronic Frontier Foundation, a nonprofit digital-rights advocacy group based in San Francisco. Search warrants -- demanding not just "reasonable suspicion" but the higher standard of probable cause -- should be required, he told the court.

University of San Francisco law professor Susan Freiwald, permitted to argue as part of Bankston's friend-of-the-court brief, warned that without such a safeguard, the government could turn a cell phone into an unseen tracker of "where we went, and how long we've been there."
Legal experts said the Third Circuit was the first federal appeals court to consider the issue.

"The way the Constitution was framed, when it came down to information as basic and personal as where you are, at what time, who you visit, and where, the framers thought the government should only have access to that if there is probable cause to think a crime was committed," said David Kairys, professor of constitutional law at Temple University Law School.

"There is no question that [the government] should be able to get [cell records] in some circumstances. It's the most basic sort of question raised by our current technology."
Justice Department spokeswoman Laura E. Sweeney said the case "clearly is important" to the government. But she would not speculate on whether a ruling against the department by the Third Circuit would trigger an appeal to the U.S. Supreme Court.

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